Motion to set aside default and default judgment
A court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon “new or different facts, circumstances or law.” (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499.) Motions for reconsideration are restricted to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. (Id.)
California Code of Civil Procedure section 1008 “is the exclusive means for modifying, amending, or revoking an order. That limitation is expressly jurisdictional.” (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494,1499.)
Under the standards set forth above, Plaintiff fails to comply with CCP section 1008.
Plaintiff fails to specifically identify the “prior order” for which Plaintiff seeks reconsideration. The only order remotely within 10 days of Plaintiff’s pending motion for reconsideration and, therefore, the only order for which jurisdiction exists, was a January 21, 2026, order denying Plaintiff’s motion for reconsideration with prejudice. Plaintiff fails to offer any new facts, law, or circumstances since the January 21, 2026, order that would warrant reconsideration. All of the arguments that Plaintiff makes in Plaintiff’s pending motion for reconsideration were available at the time of the court’s January 21, 2026, ruling. Indeed, the pending motion for reconsideration is nearly identical to Plaintiff’s prior motion for reconsideration.
The motion is, therefore, denied with prejudice.
Plaintiff is admonished that the court is inclined to impose monetary sanctions against Plaintiff for any future meritless motions for reconsideration of the same/similar orders under Code of Civil Procedure section 128.5.
Plaintiff to give notice.
10 LVNV Funding TENTATIVE RULING: LLC vs. Bracic For the reasons set forth below, Defendant Demir Bracic’s unopposed motion to set aside default and default judgment is GRANTED.
The motion was previously continued due to service issues and procedural defects in Defendant’s declaration. The service issues have since been corrected. (See ROA ## 55, 56, 59). Further, Defendant’s declaration now complies with Code of Civil Procedure
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section 2015.5. (See ROA # 59 at p. 3). As such, the court now proceeds with the motion on the merits.
Defendant Bracic testifies that Defendant did not receive actual notice of the action such that relief should be granted under section 473.5.
When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. (Cal. Civ. Proc. Code § 473.5(a)). Such a motion “shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.” (Id., § 473.5, subd. (b).)
Here, the proof of service states that Bracic was personally served on February 16, 2026.
Bracic offers a contradicting declaration stating that the physical description on the proof of service does not match Bracic’s physical descriptors—i.e., Bracic is not bald, is not 5’4-5’6 and does not weigh between 120-140 pounds. Further, Bracic states that, having viewed his video doorbell system, on February 16, 2025, a male approached Defendant’s wife, but did not hand off or deliver any papers to her that day. Bracic contends that he did not discover or have notice of this action until July 15, 2025.
Given this contradicting declaration, and taking into account the liberal policy of considering claims on the merits, the court finds that a sufficient basis exists to set aside the default against Defendant Bracic under section 473.5.
The court notes that Default judgment was entered on May 15, 2025, and Defendant’s motion was filed on August 12, 2025, within the 6 month time period prescribed by section 473.5.
For these reasons, the motion is granted.
Defendant to give notice.